Anilkumar v. Mangalanandan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 27TH DAY OF MARCH 2014/6TH CHAITHRA, 1936** ## **Crl.MC.No. 1275 of 2014 (B)** **--------------------------------------[AGAINST THE ORDER IN C.M.P. NO.886/2014 IN C.C. NO.354/03 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II (FOREST OFFENCES), PUNALUR]** **................** ## **PETITIONER/ACCUSED:** **----------------------------------** **ANILKUMAR, AGED 47, S/O. SUKUMARAN, RESIDING AT MANGALATHU VEEDU, PULLIVILA JUNCTION, PANTHAPLAVU P.O, PATTAZHI, PATHANAPURAM, KOLLAM.** **BY ADVS.SRI.BIMAL K.NATH, SRI.SREEVALSAN.V, SMT.M.K.SHIMI, SRI.D.SREENATH.** ## **RESPONDENTS/ COMPLAINANT:** **-----------------------------------------------** ## **1. MANGALANANDAN,** **S/O. SUMANGALI, PUTHENSANGETHAM, KOYIVILA P.O, KOLLAM- 691 590.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 31.** **R1 BY ADV. SRI.SAJU .J.PANICKER, R2 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.1275/2014-B:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1: A TRUE COPY OF THE JUDGMENT DATED 12-12-2007 IN CRL.REV. PET. NO 4455/2007. ANNEXURE A2: A TRUE COPY OF THE RECEIPT DATED 21-06-2010 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A3: A TRUE COPY OF THE C.M.P NO. 886/2014 IN C.C NO. 354/03 FILED BY THE PETITIONER BEFORE THE J.F.C.M- II PUNALUR. ANNEXURE A4: A TRUE COPY OF THE ORDER IN C.M.P. NO. 886/2014 IN C.C NO. 354/03 OF THE J.F.C.M- II, PUNALUR.** ## **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.A.No. 3307 of 2014 in Crl.M.C.No.1275 of 2014 .................................................. Dated this the 7[th] day of April, 2014. ## **O R D E R** This is an application filed by the petitioner for extension of time fixed by this Court as per the order in Crl.M.C.No.1275/2014 under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that this Court by order dated 27.3.2014 disposed of Crl.M.C.No.1275/2014 giving certain directions and one of such directions is that the parties will have to appear before the court below on 4.4.2014. It is alleged in the petition that since they could not get the copy of the order before the date specified for their appearance, they could not comply with the direction. So the petitioner has filed this application seeking extension of time fixed by this Court for compliance. 3. Heard the counsel for the petitioner, counsel for the 1[st] respondent and the learned Public Prosecutor. 4. It is an admitted that as per the order in Crl.M.C.No.1275/2014 dated 27.3.2014, this Court has disposed of the matter directing the complainant and the petitioner herein to appear before the court below and appraise that court regarding the Crl.M.C.No.1275 of 2014 2 payment of compensation directly to the complainant and further directed the magistrate to enter the same in the fine register as directed in **Beena v. Balakrishnan Nair (2010 (2) KLT 1017) and Sivankutty v. John Thomas** (2012 (4) KLT 21) and they were directed to appear before the court below on 4.4.2014 and till then execution of the warrant, if any, issued against the petitioner was directed to be kept in abeyance. But due to some administrative delay, the copy of the order could not be given to the petitioner and also could not be communicated to the court below as well. Under the circumstances, the petitioner and the complainant were not able to comply with the direction. So this Court feels that it necessary in the interest of justice to extend the time for a period of two weeks from today (i.e, they will have to appear before the court below on or before 21.4.2014 ) for complying with the direction as mentioned in Crl.M.C.No.1275/2014 dated 27.3.2014. Till then, lower court is directed to keep execution of the warrant against the petitioner in abeyance. If the petitioner and complainant surrender on or before the above mentioned period, then it will be deemed to be compliance with the order dated 27.3.2014 in the main case. Office is directed to communicate this order to the court below by Fax immediately. Crl.M.C.No.1275 of 2014 3 With the above directions and observations, the application is disposed of. **K. RAMAKRISHNAN, JUDGE.** cl 4 Crl.M.C.No.1275 of 2014 ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.1275 of 2014 .................................................. Dated this the 27[th] day of March, 2014. ## **O R D E R** This is a petition filed by the petitioner , who is the accused in C.C.No.354/2003 on the file of the Judicial First Class Magistrate Court-II, (Forest Offences),Punalur challenging the order in C.M.P.No.886/2014 under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') . 2. It is alleged in the petition that the petitioner is the accused in C.C.No.354/2003 on the file of the Judicial First Class Magistrate Court-II, Punalur. The case was taken on file on the basis of a private complaint filed by the first respondent as complainant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The trial court after evidence, found the petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also to pay a compensation of Rs.25,000/- to the complainant, in default to 5 Crl.M.C.No.1275 of 2014 undergo simple imprisonment for three months. The petitioner filed appeal before the Sessions Court and that was dismissed.Aggrieved by the same, he filed Crl.R.P.No.4455/2007 before this Court and this Court confirmed the order of conviction but modified the sentence to fine of Rs.25,000/-, in default to undergo simple imprisonment for three months alone and further directed to deposit the fine amount within three months and if the fine amount is deposited, that was directed to be paid as compensation to the complainant under Section 357(1)(b) of the Code. But instead of depositing the amount, the petitioner had paid the amount directly to the complainant and thereafter filed C.M.P.No.886/2014 before the magistrate court requesting to record the payment in satisfaction of the judgment passed by this Court and that was dismissed by the court below, which is being challenged by filing this petition. 3. Heard the counsel for the petitioner and the first respondent and the learned Public Prosecutor 4. The counsel for the first respondent submitted that he had received the amount. 5. It is an admitted fact that the first respondent filed a complaint under Section 138 of the Act and that was ended in Crl.M.C.No.1275 of 2014 6 conviction in the lower court and the learned magistrate sentenced him to undergo simple imprisonment for one year and also to pay a compensation of Rs.25,000/-, in default to undergo simple imprisonment for three months. The petitioner filed appeal before the sessions court and that was dismissed. Later he filed Crl.R.P.No.4455/2007 before this Court and this Court though confirmed the order of conviction and modified the sentence to fine of Rs.25,000/- alone with default sentence of 3 months and granted three months time to deposit the fine amount and further ordered that the fine if deposited, the same was directed to be paid to the complainant as compensation under Section 357 (1)(b) of the Code. 6. It is true that the petitioner has not remitted the fine as directed by the court below, in stead of he had paid the amount directly to the complainant and filed an application before the court below seeking to record that fact and close the case. But on going through the order passed by the court below it is seen that no document has been produced before the court below to prove the payment. So, under the circumstances, the court below cannot be found fault for not accepting the case of the petitioner. Further, in fact there is a direction to Crl.M.C.No.1275 of 2014 7 remit the amount before the court below within three months. If he had remitted the amount directly to the court, the court is bound to receive the same even if it is paid after the time fixed by the court. But here the amount was paid directly to the complainant. 7. However, in the decision reported in **Beena v. Balakrishnan Nair** (2010 (2) KLT 1017), this Court has found that even if the amount is paid directly and if the complainant appear before the court and acknowledges the payment by producing the receipt before that court, then the court can enter the same in the fine register and treat it as realization of the amount and payment of the amount to the complainant as directed in the order and close the case. Further the same question has been raised in **Sivankutty v. John Thomas** (2012 (4) KLT 21) . A Division Bench considered the question as to whether such a direction can be given by this Court under Section 482 of the Code and the Division Bench came to the conclusion that if a direction is made in the order that the fine will have to be paid as compensation to the complainant, then that can be considered by this Court and such a direction can be given. It is only a matter of recording Crl.M.C.No.1275 of 2014 8 and realization of fine and payment of the same to the complainant for the purpose of account purpose. So considering the circumstances, this Court feels that the petition can be disposed of as follows: If the petitioner and the complainant appear before the court below and the complainant acknowledges the payment of the amount by producing receipt or memo acknowledging the payment, then the learned magistrate is directed to record the same in the fine register as directed in **Beena's** and **Sivankutty's** cases (cited supra). The petitioner and the complainant are directed to appear before the court below on 4.4.2014 for this purpose. Till then the lower court is directed to keep the execution in abeyance. If the petitioner and the complainant do not appear before the court below as directed, then the magistrate is at liberty to proceed against the accused for realization of the amount in accordance with law. With the above directions and observations, this petition is disposed of. ## **K. RAMAKRISHNAN, JUDGE.** Crl.M.C.No.1275 of 2014 9 cl